Bombay HC: Under which circumstances, the court can release accused involved in vehicular accident prosecuted for an offence U/S 304 of IPC on bail?

 The First Information Report is plain about causing the

vehicular accident. The reasons are best known to the

investigating officer how he has applied Section 304 of the

Indian Penal Code. Even it is presumed that Ganja was lying in

the car, it was very small quantity. Such quantity does not bar

granting bail and there will be no impediment of Section 37 of

the N.D.P.S. Act. It is an act of rash and negligent driving. The

Court has sympathy towards the persons died but cannot close

the eyes towards the provisions of law in respect of granting bail.

It is not in dispute that villagers have mercilessly beat two

accused persons in the car. They were also hospitalized, not for

the injuries caused in the accident but for the injuries sustained

by assault. The question is whether the applicants would

interfere in the investigation and flee away from the trial. There

is no case as such. {Para 5}

6. After having gone through the documents placed on

record, the Court is satisfied that material investigation has been

completed. Further detention of the applicants is not required.

However, to protect the interest of all, certain conditions are to

be imposed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

938 BAIL APPLICATION NO.957 OF 2024

Akhilesh Sanjay Pawar, Vs The State of Maharashtra

CORAM: S.G. MEHARE, J.

DATE : 20th JUNE, 2024

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Supreme Court: Under which circumstances the appellate court can reduce sentence given for conviction U/S 279,338 and 304A of IPC?

 The main charge against the appellant is about causing death

by rash and negligent driving of the mini Lorry which resulted in

the death of the pillion rider of the motorcycle. For conviction

under Section 304(A) and Section 338 of the IPC, there is no

minimum sentence prescribed but the term of sentence may extend to 2 years. The sentence can also be limited to fine without any term of imprisonment. For the offence under Sections 279 and 337 of the IPC, the maximum punishment prescribed is 6 months and punishment can also be fine only.

{Para 10}

12. A three-Judges Bench of this Court, on 30.06.2021, while

considering the case of negligent driving by a bus driver in

Surendran v. Sub-Inspector of Police, 2021 17 SCC 799, ordered for substitution of sentence, for the conviction under Sections 279 and 338 of the IPC, to fine only. The Court took into account that the accident had happened over 26 years ago and the concerned accused was on bail throughout the trial.

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

GEORGE  Vs STATE OF KERALA .

Dated: SEPTEMBER 03, 2024.

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Under which circumstance the court can convict accused for offences U/S 498A and S 306 of IPC even though accused were not charged under those sections?

 Omission to frame charge does not disable the court from convicting the Accused for the offence which is found to have been proved on the evidence on record. The code has ample provisions to meet a situation like the one before us. From the statement of charge framed Under Section 304B and in the alternative Section 306, it is clear that all the facts and ingredients for framing the charge for offence Under Section 306 existed. The mere omission on the part of the trial judge to mention Section 306 Indian Penal Code with 498A would not preclude this Court from convicting the Accused for the said offence when found proved. In the charge framed Under Section 304B of Indian Penal Code, it has been clearly mentioned that the Accused has subjected the deceased to such cruelty and harassment as to drive her to commit suicide by self-immolation and as such non-framing of the specific charge would not be fatal in the instant case as no injustice is being caused to the Accused. {Para 28}

29. This Court in K. Prema S. Rao and Anr. v. Yadla Srinivasa Rao and Ors. MANU/SC/0890/2002 : (2003) 1 SCC 217 has held that mere omission or defect in framing of charge would not be fatal if from the statement of charge Under Section 304B and in the alternative Section 498A, it is clear that all facts and ingredients for framing of charge Under Section 306 existed in the case, same would suffice. It was further held that:

22. Mere omission or defect in framing charge does not disable the criminal court from convicting the Accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the statement of charge framed Under Section 304-B and in the alternative Section 498-A Indian Penal Code (as quoted above) it is clear that all facts and ingredients for framing charge for offence Under Section 306 Indian Penal Code existed in the case. The mere omission on the part of the trial Judge to mention Section 306 Indian Penal Code with Section 498-A Indian Penal Code does not preclude the court from convicting the Accused for the said offence when found proved. In the alternate charge framed Under Section 498-A Indian Penal Code, it has been clearly mentioned that the Accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 Code of Criminal Procedure take care of such a situation and safeguard the powers of the criminal court to convict an Accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. Section 221 Code of Criminal Procedure needs reproduction:

221. Where it is doubtful what offence has been committed.-(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the Accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the Accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

23. The provision of Sub-section (2) of Section 221 read with Sub-section (1) of the said Section can be taken aid of in convicting and sentencing Accused 1 of offence of abetment of suicide Under Section 306 Indian Penal Code along with or instead of Section 498-A Indian Penal Code.

24. Section 215 allows the criminal court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the Accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 Code of Criminal Procedure which reads:

215. Effect of errors.-No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the Accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

25. As provided in Section 215 Code of Criminal Procedure omission to frame charge Under Section 306 Indian Penal Code has not resulted in any failure of justice. We find no necessity to remit the matter to the trial court for framing charge Under Section 306 Indian Penal Code and direct a retrial for that charge. The Accused cannot legitimately complain of any want of opportunity to defend the charge Under Section 306 Indian Penal Code and a consequent failure of justice. The same facts found in evidence, which justify conviction of the Appellant Under Section 498-A for cruel treatment of his wife, make out a case against him Under Section 306 Indian Penal Code of having abetted commission of suicide by the wife. The Appellant was charged for an offence of higher degree causing "dowry death" Under Section 304-B which is punishable with minimum sentence of seven years' rigorous imprisonment and maximum for life. Presumption Under Section 113-A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty Under Section 498-A Indian Penal Code. No further opportunity of defence is required to be granted to the Appellant when he had ample opportunity to meet the charge Under Section 498-A Indian Penal Code.

30. In the aforesaid background and the evidence on record as already noticed by us hereinabove, it can be safely noted that High Court ought to have examined as to whether Accused could have been convicted for an offence for which no charge was framed and not undertaking of such an exercise would result in failure of justice? Thus, it will have to be seen from the facts unfolded in the present case as to whether the Accused was aware of the basic ingredients of the offence for which they are being tried and whether the main facts sought to be established against them were explained to them clearly and whether they got a fair chance to defend themselves. If the answer is in the affirmative, then necessarily this Court will have to proceed further and examine as to whether Accused can be convicted for the offence not charged and if the answer is in the negative it would result in acquittal of the Accused for said offence. In the instant case the dying declaration of the deceased would clearly indicate that deceased was mentally traumatized and she was unable to tolerate the torture and harassment meted out by the Accused person on account of which she committed suicide. It is this taunting or mental torture which she could not withstand and forced her to commit suicide by self- immolation. In that view of the matter, we are of the considered opinion that Accused persons are liable to be convicted for the offence punishable Under Section 306 Indian Penal Code though charge was not framed. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 3274 of 2023 

Decided On: 19.10.2023

Paranagouda and Ors. Vs. The State of Karnataka and Ors.

Hon'ble Judges/Coram:

S. Ravindra Bhat and Aravind Kumar, JJ.

Author: Aravind Kumar, J.

Citation: MANU/SC/1171/2023.

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When doctor will be prosecuted for medical negligence?

It prima facie appears as per the report of CDMO,
Bolangir that only normal delivery facilities were available in the
Women’s Care Nursing Home. The deceased was diagnosed as
G3P2 in labour with ‘antepartum haemorrhage’. According to
medical science, patient of ‘antepartum haemorrhage’ should be
hospitalised in a well equipped centre with facilities for blood
transfusion, emergency caesarean section and neonatal care
unit. Being a gynaecologist, the petitioner must be aware about
nature of treatment to be provided to such patient and the
consequence likely to follow if the safeguards are not properly
taken. Even if no such facilities to deal with such patient was
available in the Nursing Home, the petitioner did not advise the
complainant to take the deceased to D.H.H., Bolangir rather 37
assured the complainant that the deceased was in normal
condition. When there was heavy vaginal watery discharge after
the petitioner inserted one tablet inside the vagina of the
deceased and she felt severe pain, the petitioner gave one saline
and injection and told the complainant that the deceased would
be alright within fifteen minutes. Thus prima facie materials are
available on record to show that the petitioner knowingly kept
the deceased in the Nursing Home with assurance to the
complainant for normal delivery even though he was aware that
it was a critical case and there are no such facilities in the
Nursing Home to deal with such case. The attempt of forceps
delivery appears to have caused rupture of her uterus, as a
result of which there was profuse bleeding and the condition of
the deceased became serious. The forceps delivery was not
appropriate in a birthing centre like the Nursing Home of the
petitioner where a caesarean section could not have been done,
if needed. It was not an unforeseen injurious occurrence which
could not be reasonably anticipated but creation of a substantial
and unjustifiable risk of harm to the deceased by a conscious
disregard for that risk. Therefore, it is prima facie apparent that
the petitioner did such a high degree of negligence while dealing
with the case of the deceased which in the facts and 
circumstances no medical professional in his ordinary senses and
prudence would have done. The hazard taken by the petitioner
was of such a nature that the rupture of the uterus and severe
bleeding and risk to the lives of the mother and the unborn baby
was most likely imminent. The petitioner prima facie appears to
have not exercised the skill with reasonable competence and did
not adopt the practice acceptable to the medical profession of
that day. As a doctor, it was the duty of the petitioner to explain
the deceased or at least the complainant, chances of success and
the risk of failure of the suggested treatment and inform them
about the foreseeable risks and possible negative effects of the
treatment keeping in mind the patient's specific condition. The
independent and competent medical opinion given by the team
of doctors, the statements of the witnesses and the other
surrounding circumstances raise accusing fingers at the
petitioner which is not at all healthy sign for medical profession.
In order to attract the ingredients of offence under
section 304 Part II of the Indian Penal Code, there must be
commission of culpable homicide not amounting to murder i.e.
the death of the person must have been caused, such death
must have been caused by the act of the accused by causing
bodily injury and there must be knowledge on the part of the 39
accused, but without any intention that the bodily injury is such
that it is likely to cause death. To constitute the offence of
‘culpable homicide’ as defined in section 299 of the Indian Penal
Code, the death must be caused by doing an act: (a) with the
intention of causing death, or (b) with the intention of causing
such bodily injury as is likely to cause death, or (c) with the
knowledge that the doer is likely by such act to cause death.
Section 304-A of the Indian Penal Code on the other
hand carves out a specific offence where death is caused by
doing a rash or negligent act and that act does not amount to
culpable homicide under section 299 Indian Penal Code or
murder under section 300 Indian Penal Code. Where the
intention to kill a person or knowledge that doing of an act was
likely to cause a person's death are there, section 304-A of the
Indian Penal Code has to make room for the graver and more
serious charge of culpable homicide. Negligence and rashness
are essential elements under section 304-A of the Indian Penal
Code. In other words, the applicability of section 304-A of the
Indian Penal Code is limited to rash or negligent acts which
cause death but fall short of culpable homicide amounting to
murder or culpable homicide not amounting to murder.40
In case of Alister Anthony Pareira -Vrs.- State of
Maharashtra reported in (2012) 2 Supreme Court Cases
648, it is held as follows:-
“47. Each case obviously has to be decided on its
own facts. In a case where negligence or
rashness is the cause of death and nothing
more, Section 304-A may be attracted but
where the rash or negligent act is preceded with
the knowledge that such act is likely to cause
death, Section 304 Part II IPC may be attracted
and if such a rash and negligent act is preceded
by real intention on the part of the wrongdoer to
cause death, offence may be punishable under
Section 302 IPC.”
14. Thus, looking to the matter from all angles, I have no
doubt in my mind that knowledge cannot be attributed to
petitioner that his act might cause such bodily injuries which
may, in ordinary course of nature, be sufficient to cause death
Thus, in my opinion, there are no prima facie materials for
commission of an offence under section 304 Part II of the Indian
Penal Code. However, there are sufficient materials to proceed
against the petitioner under section 304-A of the Indian Penal
Code as due to his rash or negligent acts, death of the deceased
was caused which falls short of culpable homicide not amounting
to murder.
IN THE HIGH COURT OF ORISSA, CUTTACK
CRIMINAL REVISION NO. 758 of 2013

 Dr. Subas Chandra Dash 
 V
State of Orissa 

 P R E S E N T:

 THE HONOURABLE MR. JUSTICE S.K. SAHOO
 Date of Judgment: 27.02.2017

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When offence of medical negligence S 304A of IPC against doctor is not made out?

 Elements of rashness and negligence are essential
constituents of an offence punishable under Section 304A
of the
Indian Penal Code. They are something which cannote

recklessness, lack of care, throwing to winds the procedural
requirements and similar such other factors. In the instant case,
the doctors respondent
Nos.3 and 4, appear to have made some or
other examination of the patient and then only these doctors had
come to a conclusion about what and how should they diagnose
the ailment of Sheela and accordingly diagnosed and treated her.
As said earlier, this is not a case of diagnosis made and treatment
given in total contrast to result of patient's clinical and other
examination or in absence of it. If Dr. Arvind Bhamkar has given a
different opinion, it would not mean that Dr. Laxmi Jawanjal,
Dr. Deepak Gadge and Dr. Sushama Gadge, the respondents Nos.2
to 4, on their respective parts, were negligent. One has to
understand the difference between negligence and incorrectness of
an opinion. What has happened in this case could either be called
as error of judgment made in goodfaith
without any mala fides or
negligence or a case of conflict of opinions between two sets of
doctors without any criminality attached to either of the sets.
14. The conclusions reached above receive further support
from the material present on record. It is in the nature of opinion
of the Board of Medical Experts set up by Civil Surgeon, Amravati
and there is no dispute about the said opinion. According to this

opinion, the diagnosis made as well as treatment given to the
deceased Sheela by respondent Nos.2 to 4 was proper in the fact
situation of this case. Thus, as rightly submitted by the learned
counsel for the respondent Nos.2 to 4, in this case, the prima facie
evidence available on record supports the case of respondent Nos.2
to 4 and not the allegations levelled against them by the petitioner.
It then follows that all these facts attract to them the ratio of Jacob
Mathew (supra), and as such, I find that this is a case wherein
there is no credible opinion given by another competent doctor
that the diagnosis had been made in a rash and negligent manner
and so the treatment was given rashly and negligently.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.802 OF 2013
Gautam s/o. Sukhdeorao Sadanshiv,

...VERSUS...
State of Maharashtra,
CORAM : S.B. SHUKRE, J.
DATE : 19 th JANUARY, 2015 .
Citation;2015 ALLMR(CRI)2237

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Whether rash and negligent driving can be presumed on the basis of high speed of vehicle?

  In the present case, except the bare words of 2 
witnesses, who are interested witnesses, that the bus was in 

high speed, there is no evidence to show that the bus was 
driven rashly and negligently by the applicant.     The Courts 
below   ought   to   have   extended   benefit   of   doubt   to   the 
applicant.   Accordingly, the said benefit is extended in favour 
of   the   applicant   and   the   Judgment   and   the   Order   of 
conviction dated 03/04/1996 passed by the learned J.M.F.C., 
and the Order of conviction dated 01/02/2002 passed by the 
learned   Additional   Sessions   Judge,   Nanded   in   Criminal 
Appeal 33/1996 are hereby quashed and set aside.                                                                            
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY   
                                BENCH AT AURANGABAD
      
CRIMINAL REVISION APPLICATION NO. 45 OF 2002
Gundappa Madolappa Samangave

                  
V E R S U S

The State of Maharashtra
                          
         CORAM  : V.M.DESHPANDE, J.
       DATE OF JUDGMENT : 12 th JANUARY, 2015 
     Citation;2015 ALLMR(CRI)1060

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Leading Supreme Court Judgment on medical negligence

 The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.

(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

(6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.

(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.

In view of the principles laid down hereinabove and the preceding discussion, we agree with the principles of law laid down in Dr. Suresh Gupta's case (2004) 6 SCC 422 and re-affirm the same. Ex abundanti cautela, we clarify that what we are affirming are the legal principles laid down and the law as stated in Dr. Suresh Gupta's case. 

Supreme Court of India

Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005

Author: R Lahoti

Bench: R Lahoti, G Mathur, P.K.Balasubramanyan

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